The loss of stored sperm, in circumstances where this represented the only chance of the donor becoming the genetic parent of a child, can have devastating consequences for the individual involved. In this article, we look at how the courts have dealt with claims which have been brought in just such circumstances.

The case of Allinson and Phelan v Sheffield Teaching Hospitals NHS Foundation Trust1 earlier this year looked at the question of liability for loss of, and damage to, sperm samples. The case followed the landmark decision in Yearworth v North Bristol NHS Trust2, which recognised that a donor has property rights in his or her egg or sperm sample, and may therefore sue for damages if that sample is damaged.

The facts of Allinson and Yearworth are similar. Both involved a small group of men who had been diagnosed with cancer and were advised that their treatment could lead to infertility. As a result, they produced semen samples to be stored by cryopreservation at their local NHS Trusts, in accordance with the Human Fertilisation and Embryology Act 1990.

In Allinson, in 2002, there was a failure in the vacuum of the storage flask, which caused the evaporation of the liquid nitrogen. In Yearworth, in 2003, the level of liquid nitrogen in the storage tank fell, and there was no automatic function or manual effort to top it up. In both cases, the samples were damaged irreparably as a result of a rise in temperature. The men claimed that they had suffered mental distress and/or psychiatric injury as a result of the destruction of their sperm.

Personal injury or damage to property?

The Yearworth claim reached the Court of Appeal in 2009. The Trust had admitted that it owed a duty to take reasonable care of the samples, and that by failing to top up the liquid nitrogen, it had breached that duty. However, the Trust denied liability for the claims on the basis that the destruction of the sperm could not be considered to be ‘personal injury’ to the men’s bodies or property, and so the basic requirements needed to prove negligence had not been met.

The Court agreed with the Trust’s arguments on personal injury, stating, “It would be a fiction to hold that damage to a substance generated by a person’s body, inflicted after its removal for storage purposes, constituted a bodily or ‘personal injury’ to him”.

However, on the second question – of damage to property – the Court disagreed with the Trust. It found that the men did indeed have ownership of, and therefore property rights in, the sperm samples.

Property rights in the human body

The Court considered that the law on ownership of ‘parts or products of the living body’ needed re-analysis as a result of the advances in medical science. Historically, the courts have always adopted the principle that a living human body is incapable of being owned or possessed, either by ourselves or by others.

The Court decided that the men had ownership of their sperm for several reasons:

They alone generated and ejaculated the sperm;

Although the men could not ‘direct’ the use of their sperm, they could, by consent, direct that it not be used in a certain way; 

Fundamentally, the men could require the destruction of the sperm; and 

The men had the primary right in relation to the future use of the sperm, which the Trust had precluded by its destruction.

Bailment

The Court also indicated that the men had a further cause of action, separate to that in negligence, under the law of bailment: “If a gratuitous bailee holds himself out to the bailor as being able to deploy some special skill in relation to the chattel, his duty is to take such care of it as is reasonably to be expected of a person with such skill”.

As the Court had already determined that the men had ownership of the sperm, they were also capable of being bailors of it. The following factors were also important:

The hospital chose to take possession of the sperm;

It expressly assumed responsibility for the careful storage of the sperm; 

It held itself out to the men as able to deploy special skill in preserving the sperm; and 

The unit broke a promise to the men to store the sperm at a certain temperature.

As such, the Court found that the Trust was liable under the law of bailment, as well as in tort, for the loss of the sperm. The men were therefore entitled to compensation for any psychiatric injury or distress that was reasonably foreseeable.

A higher duty of care?

The claimants in Allinson followed the arguments in Yearworth and claimed that their local Trust was liable under the law of bailment. They argued that the Trust should have:

  • installed alarms with auto-diallers, so that prompt action could have been taken to limit the destruction of the samples; and
  • divided or separated the samples so that the risk of a loss of the whole sample was removed.

Andrology and engineering experts were called to assess the reasonableness of installing alarms with auto-diallers, and the failure to divide the samples. The conclusion was that the risk of the unit’s catastrophic failure was very low and, in any case, cryopreservation was an evolving science in 2002. At that time, 80% of sperm banks did not have alarms with auto-diallers, and the staff could not have reasonably known that the storage unit was failing. In any event, until June 2004, the Human Fertilisation and Embryology Authority (HFEA) did not recommend splitting samples or fitting alarms with auto-diallers.

The claimants argued that the Bolam3 test – which dictates that there is no negligence if a medical professional acts in accordance with a practice accepted as proper by a responsible body of medical opinion – did not apply. Bailment, they claimed, imposed a higher duty of care and that the Trusts should have been acting in accordance with the latest developments in cryopreservation (ie fitting alarms with auto-diallers) rather than the industry standard.

The Court did not agree. The Bolam test was the right test to apply, and in 2002, the precautions advocated by the claimants were not universally accepted practices in the fertility industry. The Trust was found by the Court to have acted reasonably, and the claims failed.

Comment

There are a number of points to take from these cases:

  • Yearworth established that donors have property rights in their sperm samples. Any unit involved in the storage of gametes could therefore be liable for damages if samples are damaged or destroyed.
  • Any claim stated to be for “personal injury” in respect of damage to gametes is likely to fail, but claims for damage to property will succeed, if negligence is proved.
  • Bailment introduces an alternative measure of damages in claims of this nature, but Allinson suggests that it does not impose a higher duty of care. The Bolam test continues to apply and units are obliged to act in accordance with common principles and practices set out by the HFEA.
  • Cryopreservation practices have seen considerable advancements in the years since the Allinson and Yearworth incidents. Although the Trust in Allinson was found to have taken reasonable measures to store the sperm, if this damage had occurred more recently, it is likely that the Trust would have been considered negligent. 
  • As the Court has recognised that a donor has property rights in a sperm sample, it is likely that similar claims will at some point arise for damage to other tissue samples and banked biologics.
  • Neither Allinson nor Yearworth considered the question of ownership of a product of a living human body intended for use by a third party. It is not known how the court would deal with claims brought by a third party donee, for example, for damage to donated sperm or eggs intended for IVF.

For more information on the safe storage of gametes and embryos, please see here.